February 3, 2005 | Read Time: 2 minutes
By Jennifer C. Berkshire
Age-discrimination statutes are complex, but following these tips provided by two employment lawyers can help
nonprofit employers stay on the right side of the law.
Pay attention to words. Age should never be referred to — even indirectly — during the interview process.
“Not only is it inappropriate to ask someone their age, but you also need to stay away from age-related buzzwords,” says Robert S. Turk, a lawyer in Miami. “‘New ideas,’ ‘new blood,’ ‘young people with more energy’ — these are all buzzwords that could be used as evidence of a climate of age discrimination.
Don’t make assumptions about candidates’ physical capabilities. Even when hiring for a job that requires physical skill or ability, it is important not to confuse those traits with age.
“You can ask, ‘Can you walk 100 yards?’ or ‘Can you lift 50 pounds?’ but not ‘Are you too old?’ to do those things,” says Todd Shinaman, a lawyer in Rochester, N.Y., whose clients include nonprofit health and educational organizations.
Avoid age-related stereotypes. While topics such as salary requirements and health insurance are appropriate interview topics, Mr. Shinaman cautions against linking those subjects to age. Asking candidates about whether they have used their health insurance, for example — or how much health care they are likely to need — could suggest potential disability discrimination.
“Of course you’re going to talk about salary and wages, just be careful about how you phrase it,” he says. “If you refer to the candidate’s salary expectation ‘at this stage of life,’ and the candidate doesn’t get the job, they might come away feeling that there was age discrimination involved.”
Don’t joke about age. Even joking comments and innocent remarks may give the appearance of a climate that is hostile to older workers. Mr. Turk notes that people who bring age-related lawsuits against employers often refer to stray remarks or jokes not even related to the job interview — a comment directed at a colleague walking by, for example.
“A joke about ‘replacing the blue hairs’ may end up as direct evidence in an age-discrimination suit,” he cautions.
Set down explicit job requirements. The best way to avoid age-related lawsuits is to establish a set of criteria that takes the mystery out of the hiring process, says Mr. Shinaman. “Base your selection process on qualifications and skills,” he says. “The person who meets the most of them should be the one selected.”
